To: Van Canna and GEM, senei:
Defamation is a timely topic and certainly applicable to the internet and its ability to create a third person into the equation in the form of a moderator or system operator.
I believe that I have to post a bit more about defamation to avoid misunderstandings as to definition. This area of the law is not stagnant and developing constantly; to be sure we are all on the same page, I feel that we should look at this complex law and break it down.
Defamation is classified as a Tort ( a civil wrong from the French) and as a communication by one person, by words, pictures, or other means, concerning a plaintiff, to a third person or group of persons which tends to expose the plaintiff to public hatred, ridicule or contempt, or tend(s) to hurt his standing with a considerable class in the community. It is an invasion of the plaintiff’s interest in his reputation and good name. Defamation takes two forms; libel, which is predominantly written, and slander which concerns oral communications. The essence of the tort is the "element of personal disgrace" which may follow from the spreading of false information about a person.
The communication or publication of the defendant’s words or statement, need not be universally interpreted as defamatory. So long as the plaintiff’s reputation would be injured in the minds of at least a significant and respectable class or segment of the community, even a minority, or one person, the plaintiff has a cause of action. There is no publication and hence no cause of action if the words are comprehensible only by the plaintiff (e.g.) Mass Case where store clerk uttered defamatory words to plaintiff but only understood at that time by the plaintiff.
Defamation as a tort must be distinguished from two other related intentional torts. The tort of intentional infliction of emotional distress is similar to defamation, in that in that the plaintiff suffers personal grief from the defendant’s statements. The chief difference is that the defendant does not publish derogatory information about the plaintiff to third persons. The tort of invasion of privacy is closely related to defamation, the difference being that unlike defamation, the truth of the words is not a defense to liability.
A publication may be unambiguously defamatory and therefore actionable on its face, or may require proof of extrinsic facts and circumstantial evidence, known as inducement, in order in order to support a defamatory meaning or “innuendo”. If either of these conditions are met; i.e. the words are incapable of a defamatory meaning, the complaint may be subject to dismissal.
The common law was that defamation is an intentional tort in the sense that the defendaant must have intended to publish or disseminate the statement, not that he intended to defame. In other words the defendant published at his own peril. Thus, material published as a joke, or concerning fictitious persons which the community could nonetheless interpret as referring to the plaintiff, was considered actionable, lack of intent to defame notwhithstanding.
The established rule of strict liability began to give way, in 1964, to the concept of fault on the part of the defendant as a prerequisite to recovery in a defamation case. The fault concepts are malice and negligence. Malice, a term often used confusingly, is used properly in only two instances: to negate the defense of truth in libel cases, and to limit the privilege of a defendant in defaming a public official or public figure. If a statement cannot reasonably be interpreted as defamatory, malice in the publication does not make it so.
Prior to a 174 Supreme Court Decision (SCOTUS), most states used a strict liability standard. If a statement was published by a private individual, the defendant was held liable irrespective of fault. since 1974, however, many state courts, including Massachusetts, have adopted the negligence standard, meaning that a public media can be liable for defaming a private person only upon proof of negligence in the publication.
DEFAMATORY OPINION: ACTIONABILITY:
The law of defamation had traditionally distinguished between fact and opinion. That is to say to be defamatory a statement must be an assertion of fact which can be proven false. Indeed the First Amendment protects the expression of a false idea but not a false statement of fact. It is not always easy to determine whether a statement is one of fact or opinion, however, the determination of this question is one of law for the court.
There are various classifications of opinion. A “pure” opinion is based on disclosed , or assumed nondefamatory facts, and is not actionable no matter how unjustified and unreasonable it may be or how derogatory it is. A “mixed” opinion is based on facts which have not been disclosed or assumed to exist and can be defamatory in order to justify the opinion.
However, although an opinion is based on undisclosed, false facts, it is NOT actionable unless those facts also have a defamatory meaning.
In 1990 SCOTUS dismissed the notion that there is q “wholesale defamation exemption for anything that might be labeled ’opinion’. “ The court said that the relevant question is not whether the challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact. These propositions werer reaffirmed: (1) statements made by a media defendant must be provable as false before there can be defamation liability.; (2) statements that cannot reasonably be interpreted as stating actual facts about an individual are protected, (this, includes statements clearly recognizable as pure opinion because there factual premises are revealed); (3) The court will make an independent evaluation of the whole record to assure that these determinations are made in a manner so as not to constitute a forbidden intrusion on the field of free expression. In this manner opinion about matters of public concern receive substantial constitutional protection under the First Amendment principles.
We will continue this by taking the next step as to who may be defamed, followed by Libel and its general meaning and the elements of Libel.
I did not think I could answer the questions posed at this point because of the complexity of the law without addressing the various aspects of the law.
I do feel that the comments of Van and GEM are extremely relevant in an environment where spoken and published language become a matter of concern with the advent of the internet.
For years before the internet I was constantly concerned with compliance with FCC Regulations and slander as an officer of a large amateur radio club; as to that, the problems were nothing to what can happen on the internet.
The growth of these forums is amazing but can be a cause of concern when there are personal disputes. Those concerns have also been going on for years on HAM radio repeaters, when problems of disputes, language and good taste are involved. The “repeaters” (computer controlled radio stations), are supervised by a “Trustee” who would be the equivalent of a forum moderator, and the proprietary interest in the radio club, and in the case of the internet it would be the web site owner or operator.
My own experience was that if the Trustee found some offensive conduct by a user the user would be warned, but if a Trustee was too tough would be deemed a tyrant and repeater use would drop and the radio station would be considered a censorship station.
I intend to develop awareness of Defamation law if you feel that this method is responsive to the questions at hand.